Charlick Trading Pty Ltd v Australian National Railways Commission

[1997] FCA 1186

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 78 OF 1996

BETWEEN:

CHARLICK TRADING PTY LTD
APPLICANT

AND:

AUSTRALIAN NATIONAL RAILWAYS COMMISSION
FIRST RESPONDENT

NATIONAL RAIL CORPORATION LIMITED
SECOND RESPONDENT

JUDGE:	MANSFIELD J
DATE:	26 SEPTEMBER 1997
PLACE:	ADELAIDE

REASONS FOR DECISION

HIS HONOUR:   Proposed motion for further discovery by first respondent against second respondent.

I have read the proposed notice of motion which was exhibited to the affidavit of Ms Stiller, sworn on 26 September 1997, together with the documents exhibited to that affidavit.  I have also read Ms Stiller's affidavit of 3 September 1997 and but briefly glanced at the documents which are exhibited to it.  I have read the letter from Deacons, Graham and James dated 26 September 1997 on that material.  I apprehend that the first respondent has reasonably formed the view that there are or may be other documents which are directly relevant to matters in issue in these proceedings and which the second respondent has not yet discovered.

The second respondent has however indicated by correspondence, including by its letters from its solicitors of 9, 24 and 26 September 1997, that in spite of searches to identify the existence of the documents which are suspected by the first respondent to exist, it has been unable to find any such documents.  Its searches are ongoing.  That correspondence does not unequivocally assert that the second respondent has conducted all proper inquiries to ensure that such documents do or do not exist.  I am assured, however, by Mr Gray of counsel for the second respondent that the second respondent by its solicitors has conducted all proper inquiries to identify the existence of any such documents, and that those inquiries have not led to the existence of any such documents being ascertained.  I accept that assurance, given as it is on behalf of the solicitors charged with the responsibility of ensuring that the second respondent properly discovers the documents which it is obliged to discover, in particular, the document or documents which the first respondent suspects may exist by reason of the matters referred to in par 6 of Ms Stiller's affidavit of 3 September 1997 and the document which is JMS5 exhibited to that affidavit.

I accept the assurance of Mr Gray of counsel for the second respondent that the second respondent by its solicitors has conducted or caused to be conducted all proper inquiries to identify the existence of any documents referred to in pars 3 to 14 of Ms Stiller's affidavit of 3 September 1997 and that no such documents have been identified, including in particular the document or documents which are suspected to exist and referred to in par 6 of Ms Stiller's affidavit by reference to the exhibit JMS5 to that affidavit.  I further accept the assurance of Mr Gray of counsel on behalf of the solicitors instructing him that the letters of his solicitors dated 9, 24 and 26 September are to be read in that light.

On the basis of accepting those assurances I make no order for further discovery.

I certify that this and the preceding one (1) page is a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate:
Date:

Counsel for the Applicant:  Mr R C White

Solicitors for the Applicant:  O’Loughlins

Counsel for the First Respondent:  Mr R D Ross-Smith

Solicitors for the First Respondent:  Phillips Fox

Counsel for the Second Respondent:  Mr P Gray

Solicitors for the Second Respondent:  Deacons Graham & James

Date of Hearing:  26 September 1997

Date of Decision:  26 September 1997